The Caribbean Court of Justice has extensive powers to make the orders that had been sought in the no confidence motion cases. Without serious justification, it declined to do so. Its ‘timid and ineffectual’ decision has intensified the constitutional chaos in Guyana. High Court cases are now being brought for orders and declarations that the CCJ ought to have made. In their absence, the Government has refused to act on the CCJ’s decision.
Mr. Andrew Pollard, writing in the SN on 28 August pronounces the CCJ’s decision as fine and is horrified at my criticism. As a newly minted Senior Counsel, Mr. Pollard should know that criticizing judges and courts in far sharper language than mine, is quite an accepted activity in normal countries. What is not normal is for a court that finds constitutional violations, to decline to make orders to rectify those violations, but relies instead on the ‘integrity’ of politicians. But no word from Mr. Pollard about this abject failure of the CCJ and of the Government’s continuing violations of the Constitution.
When Justice Claudette Singh was sworn in, she reminded us that when she was on the bench she was dubbed “The Iron Lady.” The newly appointed Chair of Gecom obviously intended to convey to the public that she was a decisive person, who tolerated neither nonsense nor delaying tactics. It was a clear indication that she intended to sweep away the cobwebs of obfuscation, chop a path through the forest of gridlock using “the law and nothing else”- her words. Now is the time. Gecom, over which Justice Singh has a decisive, one vote authority, must not be allowed to dance to the tune of delay, which everything that has happened since December 21 is about. There is probably no democratic country in the world in which a no confidence vote was passed against the Government that has failed to hold elections after eight months. And our argument in Guyana is on the list of electors.
In countries with a Westminster constitution as a significant characteristic, as in Guyana, where the executive sits in the Parliament, there is a long-standing convention that when a no confidence motion is passed against the Government, elections are promptly held. In 2001 the Parliament accepted the recommendation of the Constitution Reform Commission to include article 106 in the Constitution to provide for elections in three months if a no confidence motion is passed. The Parliament must have taken into consideration that if there is no constitutional provision and a no confidence motion is passed, the Government might ignore it. The Parliament also provided for the resignation of the Cabinet. The obvious reason was to institutionalise the caretaker status of the Government by confining the Government to largely administrative functions until the elections are held. In the absence of the Cabinet no major decisions could be taken.
The Chief Justice ruled last week in the case brought by Christopher Ram in connection with the house to house registration that it is unlawful to remove names from the registration list during the current exercise merely because they are not present at the addresses or had migrated. The stated objective of the house to house registration was to remove the names from what was described as a list ‘bloated’ by 200,000 names. It was not quite clear how the ‘bloating’ occurred, or how the figure of 200,000 was conjured up, but it was assumed that these were persons who had died or migrated.
The Attorney General described the decision of the Chief Justice as a “statement” regarding the removal of persons from the National Register of Registrants and as more like a “suggestion” to the Guyana Elections Commission. It is not an “order,” he said, and the Chief Justice could not have intended to direct GECOM. This must be a hint to GECOM that it can ignore the Chief Justice’s decision and continue the house to house registration.
Apart from recognizing its ‘interim’ status, the Government acknowledges no other consequence of the no confidence motion passed in the National Assembly on December 21, after it members challenged the Opposition PPP to ‘bring it on.’ Attorney General Basil Williams said at a symposium at the Marriot Hotel sponsored by AmCham during last week said that Guyana is not geared for a no confidence motion. He also repeated at that event what he has said, in and out of court, that the Caribbean Court of Justice has not fixed a date for elections, implying that such a date is at large and will be fixed when house to house registration is complete. The Attorney General plucked out of the context of Article 106 that the Government shall resign after the President takes the oath of office following the election and appeared to indicate that this applies to whenever “the election” is held. In fact, “the election” refers to “an election within three months” which shall be held after the Government’s defeat on a no confidence motion.
To this melee of confusion, the President says that he doesn’t fix a date for, and has nothing to do with, elections; that it is Gecom’s responsibility to fix the date and to manage the elections. But the President then summoned the constitutionally independent body to his office for discussions in the absence of the Leader of the Opposition and then, after the meeting with Gecom on August 15, makes a statement reeking of intimidation: “We will accept any formula or any rule or any decision which satisfies the requirement of a credible election.” The President, the Attorney General and other Government spokespersons have said repeatedly that only a house to house registration will produce a credible list of voters. So what will the President do if in his view the decision of Gecom does not satisfy the requirement of a credible election, that is to say, does not uphold its decision to continue and complete the house to house registration to create a new voters’ list?
At her swearing in as Chair of Gecom on July 29, 2019, Justice Claudette Singh said that she will follow the law. But what is the law? Elections by September 18? The Supreme Court certainly thought so. In order to correct misreporting in connection with preliminary deliberations in the matter of Christopher Ram v Chief Election Officer and others, the Supreme Court of Judicature Protocols and Communications Unit issued a Press Release on Wednesday 24 July which said: “The High Court confirmed that the Chief Justice (ag) stated that the consequential orders of the Caribbean Court of Justice (CCJ) indicate that elections should be held by September 18, 2019, or such longer period as the National Assembly determines.”
This view accords with the judgments of the CCJ in the consolidated appeals on the no confidence motion in which the CCJ gave its judgment on June 18 and consequential orders on July 12. In its July 12 decision the CCJ said: “Given the passage of the no confidence motion on 21 December 2018 a general election should have been held in Guyana by 21 March unless a two thirds majority in the National Assembly had resolved to extend that period. The National Assembly is yet to extend that period. The filing of the court proceedings in January challenging the validity of the no confidence vote effectively placed matters on pause, but this court rendered its decision on 18 June 2019.” No deconstruction of this statement is necessary to conclude that the CCJ is saying that time, which was paused by the court actions, began to run once again on 18 June 2019.